Depsky v. Com., Record No. 1546-06-2.

• Decision Date: 09 October 2007
• Docket Number: Record No. 1546-06-2.
• Citation: 50 Va. App. 454,650 S.E.2d 867
• Court: Virginia Court of Appeals
• Parties: Judith Ann DEPSKY v. COMMONWEALTH of Virginia.

650 S.E.2d 867

50 Va. App. 454

Judith Ann DEPSKY v. COMMONWEALTH of Virginia.

Record No. 1546-06-2.

Court of Appeals of Virginia, Richmond.

October 9, 2007.

David D. Lentz for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HUMPHREYS, CLEMENTS and McCLANAHAN, JJ.

CLEMENTS, Judge.

Judith Ann Depsky (appellant) was convicted in a bench trial in the Circuit Court of Chesterfield County (trial court) of driving under the influence (DUI), in violation of Code § 18.2-266. On appeal, she contends the trial court erred in ruling her conviction for DUI, after her privilege to drive in Virginia had been suspended pursuant to the sixty-day suspension provision in Code § 46.2-391.2 for the same offense, did not violate the constitutional prohibition against double jeopardy. Finding no error, we affirm the trial court's judgment and appellant's conviction.

I. BACKGROUND

The relevant facts and procedural posture of this case are not in dispute.¹ On November 13, 2005, appellant was arrested in Clarke County and charged with DUI, first offense. Prior to trial on that charge, appellant was arrested in Chesterfield County on February 1, 2006, and charged with DUI, second offense. Testing in connection with the second arrest revealed that appellant had a blood alcohol concentration of 0.16%. Upon issuance of a warrant by the magistrate for DUI, second offense, appellant was served with notice that her privilege to drive in Virginia was administratively suspended for sixty days pursuant to Code § 46.2-391.2, effective immediately.²

At a February 10, 2006 scheduling hearing in the General District Court of Chesterfield County, appellant requested that the administrative suspension of her privilege to drive be reduced to seven days because she had not been convicted of a previous DUI offense. The court, however, took no action on her request and set trial for March 24, 2006.

On March 2, 2006, appellant was tried in the General District Court of Clarke County on the 2005 DUI charge. She was convicted only of reckless driving.

On March 10, 2006, appellant filed a motion with the General District Court of Chesterfield County to have her privilege to drive in Virginia restored. With the agreement of the Commonwealth, the court restored appellant's driving privilege on March 16, 2006.

On March 24, 2006, appellant was tried in the General District Court of Chesterfield County on the 2006 DUI charge. Rejecting appellant's claim that the prior administrative suspension of her privilege to drive in Virginia constituted a criminal sanction for purposes of double jeopardy, the court convicted her of DUI, first offense.

After appealing her conviction to the Circuit Court of Chesterfield County (trial court), appellant moved to have the 2006 DUI charge dismissed on double jeopardy grounds. She argued the administrative suspension of her privilege to drive in Virginia pursuant to the sixty-day suspension provision of Code § 46.2-391.2 constituted a criminal sanction. Thus, she further argued, her subsequent criminal prosecution for the same offense was barred by the double jeopardy prohibitions of the United States and Virginia Constitutions. The trial court denied the motion and subsequently convicted appellant of DUI, first offense.

This appeal followed.

II. ANALYSIS

On appeal, appellant contends the trial court erroneously ruled that the administrative suspension of her privilege to drive in Virginia pursuant to the sixty-day suspension provision of Code § 46.2-391.2 did not constitute a criminal sanction for double jeopardy purposes. Appellant acknowledges that this Court held in Ingram v. Commonwealth, 29 Va.App. 759, 514 S.E.2d 792 (1999), that the administrative suspension of a person's driving privilege pursuant to Code § 46.2-391.2 is a civil, rather than criminal, sanction and, thus, does not offend the constitutional prohibition against double jeopardy. She asserts, however, that, unlike the statute's seven-day-suspension provision applied in Ingram, the more recently enacted sixty-day suspension provision of Code § 46.2-391.2 applied in this case constitutes a criminal sanction because of its excessive length. As such, she argues, it offends federal and state double jeopardy protections since it permits a defendant to be twice placed in jeopardy as a result of the administrative suspension and the subsequent prosecution for the same DUI offense. Accordingly, she concludes, the trial court erred in refusing to dismiss the 2006 DUI charge on double jeopardy grounds.

In response, the Commonwealth contends that, even though the length of the administrative suspension at issue in this case is longer than the length of the suspension at issue in Ingram, this Court's underlying rationale and holding in Ingram are equally applicable to this case. Consistent with that rationale and holding, the Commonwealth argues, the administrative suspension of appellant's privilege to drive in Virginia pursuant to the sixty-day suspension provision of Code § 46.2-391.2 was a civil sanction and, thus, did not offend federal or state double jeopardy protections. Accordingly, the Commonwealth concludes, the trial court did not err in denying appellant's motion to dismiss the 2006 DUI charge on double jeopardy grounds. We agree with the Commonwealth.

As relevant here, "[t]he double jeopardy clauses of the United States and the Virginia constitutions . . . protect against . . . multiple punishments for the same offense." Commonwealth v. Hudgins, 269 Va. 602, 604-05, 611 S.E.2d 362, 364 (2005). "Thus, subjecting a defendant to cumulative punishments for the `same offense' violates both state and federal protections against double jeopardy." Schwartz v. Commonwealth, 45 Va.App. 407, 440, 611 S.E.2d 631, 647 (2005). However, the constitutional prohibition against double jeopardy "`protects only against multiple criminal punishments for the same offense . . . in successive proceedings.'" Dorsey v. Commonwealth, 32 Va. App. 154, 161, 526 S.E.2d 787, 790 (2000) (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997)); see also Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 230 (2002) ("Virginia's constitutional guarantee against double jeopardy affords a defendant the same guarantees as the federal Double Jeopardy Clause."). Accordingly, the imposition of a sanction that is civil, rather than criminal, in nature does not implicate double jeopardy principles. See Dorsey, 32 Va.App. at 165, 526 S.E.2d at 792. In other words, the imposition of civil sanctions in connection with a criminal charge does not bar the subsequent criminal prosecution for the same charge. Id. The dispositive question before us, then, is whether the administrative suspension of a person's privilege to drive in Virginia pursuant to the sixty-day suspension provision of Code § 46.2-391.2 constitutes a criminal sanction, as appellant asserts.

In Hudson, the United States Supreme Court set forth the current two-part test to be used to determine whether a particular sanction is civil or criminal:

A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or another." [United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980)]. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive in purpose or effect," id. at 248-49, as to "transform what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154 [76 S.Ct. 219, 222, 100 L.Ed. 149] (1956).

Hudson, 522 U.S. at 99, 118 S.Ct. at 493. Regarding the latter inquiry, the Supreme Court provided in Hudson the following "useful guideposts" for determining whether a civil sanction has been transformed into a criminal sanction:

(1) "whether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment—retribution or deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."

Id. at 99-100, 118 S.Ct. at 493 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963)). "As the Court emphasized, however, `these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.'" Dorsey, 32 Va.App. at 162, 526 S.E.2d at 791 (quoting Hudson, 522 U.S. at 100, 118 S.Ct. at 493).

Here, appellant's privilege to drive in Virginia was administratively suspended pursuant to Code § 46.2-391.2(A), which provides, in pertinent part, as follows:

If a breath test is taken pursuant to [Code] § 18.2-268.2 or any similar ordinance and . . . the results show a blood alcohol content of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath . . . and . . . upon issuance of a warrant by the magistrate, for a violation of . . . [Code] § 18.2-266 . . ., the person's license shall be suspended immediately or in the case of . . . a person whose driver's license is from a jurisdiction other than the Commonwealth, such person's privilege to operate a motor vehicle in the Commonwealth shall be suspended immediately. The period of suspension of the person's license or privilege to drive shall be seven...